BABA BAIDYANATH MEDICAL TRUST Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) Heard Mr. Ajit Kumar, learned senior counsel appearing for the petitioners, Mr. Ravi Prakash Mishra, learned counsel for the State, Mr. P.A.S. Pati, learned counsel for the Bank and Mr. Abhishek Krishna Gupta, learned counsel for respondent no.6.

(2.) The prayer in the writ petition is made for quashing of the entire proceedings in Criminal Misc. Case No.29 of 2024 pending before respondent no.2 on the ground the same is without jurisdiction and is in the teeth of order of status quo passed on 24/2/2024 by the High Court in W.P.(C) No.165 of 2024 and without impleading the necessary party i.e. petitioner no.1. The further prayer is made for quashing the order dtd. 7/2/2024, contained in Annexure-8 passed by respondent no.2 in Criminal Misc. Case No.29 of 2024, whereby, the scheduled property was attached and respondent no.3 was appointed as the receiver of the scheduled property. The prayer is also made for quashing of the warrant of attachment dtd. 7/2/2024, contained in Annexure-9 issued under Sec. 146(1) Cr.P.C. by respondent no.2 in Criminal Misc. Case No.29 of 2024.

(3.) Mr. Ajit Kumar, learned senior counsel appearing for the petitioners submitted that petitioner no.1 is a registered Trust whose trustees are citizen of India and petitioner no.2 is its Trustee who is looking affairs of petitioner no.1-Trust. He submitted that respondent no.6 is a private individual who had filed a complaint before respondent no.2 on the basis of which Criminal Misc. Case No.29 of 2024 was instituted. He further submitted that the land is situated at Village Mohanpur, Thana No.224, Jamabandi No.11, P.S. Jasidih, District- Deoghar, Plot Nos.301, 309, 310/689, 63, 64, 65, 73, 75, 76, 77, 78, 79, 80, 87, 88, 193, 197, 204, 282, 308, 339, 340, 341, 352, 358, 359, 360, 361, 362, 363, 364, 365, 366, 367, 368, 369, 370, 375, 381, 408, 417, 453, 81/685, 81 and 74 ad-measuring an area of 26 acres and 50 decimals along with land, building, structures including all movable items, medical machines and equipment, hospital fixtures and furniture (scheduled property) belonged to M/s Paritran Medical College and Hospital. M/s Paritran Medical College and Hospital had mortgaged the scheduled property for seeking financial assistance of Rs.93.00 Crores from the consortium of Banks of which respondent no.4 was the leading Bank and United Bank of India and Oriental Bank of Commerce were members of the consortium for implementation of project. He then submitted that M/s Paritran Medical College and Hospital was unable to repay the loan amount and the loan account was declared NPA by Punjab National Bank on 31/3/2011, Union Bank of India on 30/9/2010 and Oriental Bank of Commerce on 31/12/2010, thereafter, the Banks filed O.A. No.154 of 2013 before the Debts Recovery Tribunal, Ranchi for recovery of a sum of Rs.1,41,39,09,761.56 (Rupees One Hundred and Forty One Crores Thirty Nine Lakhs Nine Thousand Seven Hundred and Sixty One and Fifty Six Paise). The said O.A. was allowed by the Debts Recovery Tribunal, Ranchi vide order dtd. 26/6/2015 and recovery certificate was issued for recovery of an amount of Rs.1,41,39,09,761.56 (Rupees One Hundred and Forty One Crores Thirty Nine Lakhs Nine Thousand Seven Hundred and Sixty One and Fifty Six Paise) and, thereafter, demand notice dtd. 13/7/2015 was issued by the Recovery Officer, Debts Recovery Tribunal, Ranchi wherein M/s Paritran Medical College and Hospital was called upon to pay the certificate amount. The Recovery Officer vide order dtd. 13/4/2016 issued the warrant of attachment for attachment of immovable property mortgaged with the consortium Bank which was forwarded to the Recovery Inspector and another warrant of attachment of movable properties was issued on 27/10/2016 and receiver was appointed for preparation of inventory of movable properties. He further submitted that the Recovery Officer, Debts Recovery Tribunal and Bank have thereafter taken repeated efforts to auction the scheduled property. The scheduled property was again put to auction vide order dtd. 8/11/2023 and the auction schedule was fixed for 20/12/2023. He submitted that before the date of auction sale, one interlocutory application was filed by M/s Paritran Medical College and Hospital before the Recovery Officer on 18/12/2023 for stay of the auction on 20/12/2023, which was rejected on 19/12/2023. He further submitted that the auction was taken place on 20/12/2023 and petitioner no.1 was declared successful bidder and the order of confirmation of the sale along with the certificate of sale was issued in favour of petitioner no.1 on 23/1/2024, contained in Annexure-2. By way of drawing attention of the Court to Annexure-4, which is the order passed by the High Court in W.P.(C) No.165 of 2024, he submitted that the said writ petition was filed under Article 226 of the Constitution of India by M/s Paritran Medical College and Hospital, in which, petitioner no.1 was not made party- respondent. The said writ petition was listed on 24/1/2024 at 04:00 P.M. He submitted that the petitioners came to know about listing of the said matter. It was submitted that the petitioner is the auction purchaser of the scheduled property and he has not been impleaded as respondent in the said writ petition and the Bank has also submitted that the possession of the schedule property has been handed over to petitioner no.1 at around 03:00 P.M. and recording the said submission, the High Court passed the order of status quo over the scheduled property on 24/1/2024 and the matter was further directed to be listed on 30/1/2024. The respondent- Punjab National Bank filed counter affidavit in the said writ petition, wherein, it was stated that at 03:17 P.M., the possession of the scheduled property was handed over to petitioner no.1. He further submitted that in violation of the order of status quo passed by the High Court, the Guard of M/s Paritran Medical College and Hospital, who is respondent no.6 in the present writ petition, filed an application before respondent no.2 on 27/1/2024 against petitioner no.2 for recovery of possession of the scheduled property alleging therein that petitioner no.2 has illegally taken the possession of the scheduled property on 24/1/2024 at 05:00 P.M., thereafter, respondent no.2 on the basis of the application filed by respondent no.6 initiated a proceedings under Sec. 145 Cr.P.C. against petitioner no.2, which was registered as Criminal Misc. Case No.29 of 2024. He then submitted that petitioner no.1 was not impleaded as party- respondent in the said proceeding under Sec. 145 Cr.P.C., whereas, the said property was already handed over to petitioner no.1 on 24/1/2024 at 03:17 P.M. Vide order dtd. 27/1/2024, notices were issued upon petitioner no.2 and respondent no.6 and the matter was posted for 7/2/2024 by respondent no.2. He submitted that no notice with regard to the proceeding in Criminal Misc. Case No.29 of 2024 was however served upon petitioner no.2 and without verifying the same and without providing opportunity of hearing to petitioner no.2, the order dtd. 7/2/2024 has been passed by respondent no.2, wherein, the scheduled property has been attached and respondent no.3 has been appointed as receiver under Sec. 146 Cr.P.C. He submitted that the petitioners were unaware of the proceeding initiated by respondent no.2 on the application filed by respondent no.6 and they came to know about the order dtd. 7/2/2024 later on. He submitted that in this background, the initiation of proceeding under Sec. 145 Cr.P.C. is without jurisdiction and in violation of the order passed by the High Court dtd. 24/1/2024 in W.P.(C) No.165 of 2024. He submitted that the said proceeding was bad in law as the petitioners were not made party and they were not heard and in spite of that, the order has been passed. He also submitted that the possession was handed over to petitioner no.1 on 24/1/2024 at 03:17 P.M., as such, the contention of respondent no.6 was not correct that by 05:00 P.M., M/s Paritran Medical College and Hospital was in possession. He further submitted that respondent nos. 1 to 3 by way of biasness and malafide intention, have passed such order in violation of the order of the High Court as the auction sale was in favour of the petitioners and sale certificate was also issued. He submitted that the entire proceeding is vitiated on the ground of principle of natural justice also. He submitted that the interlocutory application being I.A. No.1006 of 2024 was filed in W.P.(C) No.165 of 2024 by M/s Paritran Medical College and Hospital for initiation of contempt against petitioner no.2 for violating the order dtd. 24/1/2024 passed by the High Court, however, the writ petition itself was dismissed on the ground of maintainability and no contempt proceeding was initiated vide order dtd. 13/2/2024. He submitted that although against the order dtd. 13/2/2024, L.P.A. has been preferred and in that appeal the judgment is reserved, however, the same has got no concern so far as the present writ petition is concerned. He submitted that once the auction sale was in favour of the petitioners and certificate was also issued and the Recovery Officer has already handed over the said property, the respondent, if he was aggrieved, he was having remedy of filing an appeal under Sec. 30 of the Recovery of Debts and Bankruptcy Act, 1993. On the maintainability of Ss. 145 and 146 Cr.P.C., he submitted that the authority concerned has got no jurisdiction in the facts and circumstances of the present case. He relied upon the judgment passed by the Hon'ble Supreme Court in the case of Shanti Kumar Panda v. Shakuntala Devi, reported in (2004) 1 SCC 438. He referred paragraph 23 of the said judgment, which reads as under: